W. R. Berkley Insurance (Europe), Limited

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1 W. R. Berkley Insurance (Europe), Limited CONSTRUCTION INDUSTRY PROFESSIONAL INDEMNITY INSURANCE IMPORTANT NOTICE TO THE INSURED This insurance is a legal contract. Please read it carefully to ensure that it is in accordance with your requirements and that you understand its terms and conditions. The Insurance Broker or other intermediary who arranged this insurance should be contacted immediately if any correction is necessary. Your attention is particularly drawn to the notice that appears overleaf. CONIND Registered Office: 40 Lime Street, London EC3M 7AW Registered in England & Wales

2 NOTICE TO THE INSURED It is always our intention to provide a first class standard of service. However, if you have any cause for complaint or you wish to make any enquiry regarding this insurance you should, in the first instance, contact the Insurance Broker or other intermediary who arranged this insurance for you. Alternatively you may contact ourselves at the following address: Compliance Officer, W.R. Berkley Insurance (Europe), Limited 2 nd Floor 40 Lime Street London EC3M 7AW If you are not satisfied with the way a complaint has been dealt with you have the right to request that the Financial Ombudsman Service ( FOS ) review your case. Their address is: Financial Ombudsman Service South Quay Plaza 183 Marsh Wall London E14 9SR Telephone: There are, however, some circumstances in which the FOS is not empowered to consider complaints. If you contact the FOS in respect of any complaints, this will not affect any rights you have in law. CONIND

3 W.R. Berkley Insurance (Europe), Limited CONSTRUCTION INDUSTRY PROFESSIONAL INDEMNITY INSURANCE INDEX Item Page INSURING CLAUSES 4 EXTENSIONS 5 CLAIMS CONDITIONS 7 GENERAL CONDITIONS 8 EXCLUSIONS 10 DEFINITIONS AND INTERPRETATIONS 13 SCHEDULE 15 CONIND

4 CONSTRUCTION INDUSTRY PROFESSIONAL INDEMNITY INSURANCE THIS IS A CLAIMS MADE AND CIRCUMSTANCE NOTIFIED INSURANCE The INSURED having made a written proposal to INSURERS bearing the date shown in the SCHEDULE containing particulars and statements which it is hereby agreed are the basis of this insurance and are to be considered as incorporated herein, and in consideration of the INSURED having agreed to pay the premium shown in the SCHEDULE, INSURERS agree to indemnify the INSURED, subject to the terms, conditions, exclusions and limitations of this insurance Insuring Clause INSURERS shall indemnify the INSURED, up to the INDEMNITY LIMIT, for the amount of any claim including claimant s costs and expenses first made against the INSURED and notified to INSURERS during the POLICY PERIOD in respect of any civil liability which arises out of the exercise and conduct of the BUSINESS. 1.2 DEFENCE COSTS INSURERS shall also indemnify the INSURED for DEFENCE COSTS where such costs have been incurred with INSURERS prior written consent. Such DEFENCE COSTS shall be payable in addition to the INDEMNITY LIMIT. In the event that a settlement is made with any party in excess of the INDEMNITY LIMIT, INSURERS liability in respect of DEFENCE COSTS shall be in the same proportion that the INDEMNITY LIMIT bears to the sum which would be payable by INSURERS but for the INDEMNITY LIMIT. CONIND

5 EXTENSIONS The following extensions are granted as part of this insurance, subject to the terms, conditions, exclusions and limitations of this insurance. 2.1 Loss of or Damage to DOCUMENTS In the event of physical loss of or damage to DOCUMENTS suffered and notified to INSURERS during the POLICY PERIOD, the INSURED is indemnified for any claim or reasonable and necessary costs and expenses incurred in replacing, restoring or reconstituting any DOCUMENTS which are the property of the INSURED or are in the INSURED s care, custody or control. The maximum amount payable by INSURERS shall be 50,000 in the aggregate. An EXCESS of 1,000 each and every claim shall apply. Should the EXCESS shown in the SCHEDULE be less than 1,000 each and every claim then the EXCESS shown in the SCHEDULE shall apply. 2.2 Joint Venture/Consortium The INSURED is indemnified for any claim first made against the INSURED and notified to INSURERS during the POLICY PERIOD which the INSURED may become legally liable to pay, whether jointly or severally, which arises out of the exercise and conduct of the BUSINESS whilst a member of a joint venture or consortium where such joint venture or consortium together with the turnover/fees of the joint venture or consortium (not just the INSURED s proportion) has been declared to INSURERS, whether or not the joint venture or consortium is conducted through a separate legal entity. 2.3 Self Employed Persons The INSURED is indemnified for any claim for civil liability first made against the INSURED and notified to INSURERS during the POLICY PERIOD which the INSURED may become legally liable to pay, arising out of the use of self employed or contract hire persons in the exercise and conduct of the BUSINESS. The use of individual persons need not be disclosed to INSURERS, but details of payments to such persons must be declared to INSURERS at renewal of this insurance. For the purpose of this insurance such persons are deemed to be employees of the INSURED. 2.4 Indemnity to Employees, Former Employees and/or Consultants Employees or former employees of the INSURED are indemnified for any claim for civil liability first made against them and notified to INSURERS during the POLICY PERIOD which arises out of the exercise and conduct of the BUSINESS. Former partners, former directors or former employees of the INSURED who have continued as consultants to the INSURED and any persons who were formerly consultants to the INSURED are indemnified in respect of any claim first made against them and notified to INSURERS during the POLICY PERIOD which arises out of the exercise and conduct of the BUSINESS. 2.5 Prosecution DEFENCE COSTS The INSURED is indemnified, for any DEFENCE COSTS incurred during the POLICY PERIOD with the prior written consent of the INSURERS in relation to any criminal proceedings ( proceedings ) against the INSURED, or any of its employees, arising from alleged breach of any United Kingdom statutory regulation relating to building or construction works where such alleged breach arises out of the exercise and conduct of the BUSINESS in the United Kingdom. This extension (only) is subject to the following: the reasonable belief of INSURERS that the defence of such proceedings would assist in the defence of any claim against the INSURED arising from such proceedings that would be subject to indemnity under this insurance any subsequent or concurrent claim that is subject to indemnity under this insurance and that arises out of any proceedings notified under this extension shall be deemed to be a CIRCUMSTANCE and shall be subject to the claims conditions (see 3.2) any appeal against the outcome of any initial proceedings shall be deemed to be proceedings for the purpose of this extension the maximum amount payable by INSURERS shall be 50,000 in the aggregate INSURERS shall not be liable for the first 1,000 of DEFENCE COSTS incurred in respect of each prosecution. CONIND

6 2.6 Adjudication INSURERS agree to indemnify awards made against the INSURED by an adjudicator appointed to resolve a dispute in accordance with the Scheme for Construction Contracts as contained in the Housing Grants Construction and Regeneration Act 1996 ( the Act ) or an adjudication clause or rules contained in a contract, subject to the claims conditions under 3.6. CONIND

7 The following claims conditions apply to this insurance: CLAIMS CONDITIONS 3.1 Conditions Precedent to Liability All conditions set out below ( inclusive) are deemed to be conditions precedent to INSURERS liability under this insurance. 3.2 Discovery of a Claim or CIRCUMSTANCE If during the POLICY PERIOD the INSURED receives notice of any claim other than any claim provided for in 3.2.2, the INSURED shall give notice (in accordance with condition 3.3) to INSURERS as soon as practicable If during the POLICY PERIOD the INSURED receives a LETTER OF CLAIM, the INSURED shall give notice (in accordance with condition 3.3) to INSURERS as soon as practicable and in any event within 14 days from receipt of such LETTER OF CLAIM and not later than expiry of the POLICY PERIOD If during the POLICY PERIOD the INSURED becomes aware of any CIRCUMSTANCE, the INSURED shall give notice (in accordance with condition 3.3) to INSURERS of such CIRCUMSTANCE as soon as practicable INSURERS agree that any CIRCUMSTANCE notified to them during the POLICY PERIOD which subsequently gives rise to a claim after expiry of this insurance shall be deemed to be a claim first made during the POLICY PERIOD. 3.3 Notice Notice to INSURERS under condition 3.2 shall not be valid unless it has been received in writing by the persons shown in the SCHEDULE. 3.4 Admission of Liability In the event of any claim or CIRCUMSTANCE, the INSURED shall not admit liability and no admission, offer, promise or payment shall be made by the INSURED without INSURERS prior written consent. 3.5 Conduct of Claims Following notification of any claim or CIRCUMSTANCE, INSURERS shall be entitled to take over and conduct in the name of the INSURED the investigation, defence or settlement of any such matter. The INSURED shall CO-OPERATE with and give all such assistance as INSURERS may reasonably require. 3.6 Adjudication In relation to the Adjudication Extension (see 2.9), the INSURED shall ensure that the timetable provisions in any contract are no more onerous to the INSURED than those contained in the Scheme for Construction Contracts referred to in the Act shall notify INSURERS within 7 days of receipt of any notice of intention to adjudicate, notice of adjudication, referral notice or any adjudication notice pursuant to contract shall not serve any of the notices referred to in above without prior written consent of INSURERS, unless in the INSURED s reasonable opinion this will not give rise to a claim under this insurance agrees that INSURERS shall be entitled if they reasonably request to pursue legal, arbitration or other proceedings in the name of and on behalf of the INSURED to challenge, appeal, open up or amend any decision, direction, award, or the exercise of any power of the adjudicator or to stay the enforcement of any decision, direction, award or exercise of any power of the adjudicator. The INSURED shall give all such assistance as INSURERS may reasonably require in relation to such proceedings shall not accept the decision of the adjudicator as finally determining the dispute without the prior consent in writing from INSURERS must satisfy INSURERS that any liability incurred under an adjudicator s decision for which indemnity is being sought would otherwise be the subject of indemnity under this insurance. For the avoidance of doubt: (a) notification of a notice of intention to adjudicate and/or notice of adjudication and/or referral notice and/or any adjudication pursuant to contract shall be considered to be a notification under the terms of this insurance subject to all other terms, conditions, exclusions and limitations of this insurance which are not in conflict with the condition (b) the adjudicator in any contract must be independent of the parties to the dispute (c) the condition does not in any way limit INSURERS rights of subrogation. CONIND

8 GENERAL CONDITIONS The following general conditions apply to this insurance: 4.1 Retroactive Date Where a retroactive date is specified in the SCHEDULE, this insurance shall not indemnify the INSURED for any claim notified to INSURERS and arising out of the exercise and conduct of the BUSINESS prior to the said retroactive date. 4.2 Subrogation If any payment is made by INSURERS, the INSURED grants to INSURERS all rights of recovery against any parties from whom a recovery may be made and the INSURED shall take all reasonable steps to preserve such rights. However, INSURERS agree to waive any rights of recovery against any employee of the INSURED or former employee, self employed person or consultant of the INSURED unless liability has resulted in whole or part from any act or omission on the part of such person which is dishonest, fraudulent, criminal or malicious. 4.3 Insurance Disputes This insurance is governed by the laws of England and Wales. Any dispute or difference between the INSURED and INSURERS arising from this insurance shall be referred for determination to Senior Counsel of the English Bar, to be mutually agreed between INSURERS and the INSURED, or any other person as may be mutually agreed. In the event of disagreement regarding the appointment, the Chairman of the Bar Council shall appoint a suitable person. The findings of the agreed or appointed person shall be binding on INSURERS and the INSURED, and the cost of such referral shall be allocated by the agreed or appointed person on a fair and equitable basis. 4.4 Claim Settlements INSURERS may at any time pay to the INSURED in connection with any claim or claims the INDEMNITY LIMIT (less any sums already paid) or any lesser sum for which such claim or claims can be settled and upon such payment INSURERS shall not be under any further liability in respect of such claim or claims except for DEFENCE COSTS incurred prior to such payment with INSURERS prior written consent. 4.5 Contracts (Rights Of Third Parties) Act 1999 Notwithstanding the provisions of the Contracts (Rights of Third Parties) Act 1999, and for the avoidance of doubt: this insurance is not intended to confer any enforceable rights upon any third party, whether or not an interest of such third party is acknowledged by INSURERS the parties to this insurance shall be entitled to rescind or vary this insurance without the consent of any third party, whether or not an interest of such third party is acknowledged by INSURERS in the event of proceedings by a third party against INSURERS for the enforcement of any provision of this insurance, INSURERS shall have available to them any defence or set off which would have been available if the proceedings had been brought by the INSURED. 4.6 Several Liability Notice The subscribing INSURERS obligations under insurances to which they subscribe are several and not joint and are limited solely to the extent of their individual subscriptions. The subscribing INSURERS are not responsible for the subscription of any co-subscribing INSURER who for any reason whatsoever does not satisfy all or part of its obligations. 4.7 Disclaimer of Liability by Insurers In the event of INSURERS at any time being entitled to avoid this insurance ab initio by reason of any materially inaccurate or misleading information given to INSURERS in the written proposal or at any time during the negotiations leading to the inception of this insurance or as a result of failure to disclose material facts before the inception of this insurance or for any other reason at law, INSURERS may at their election instead of avoiding this insurance ab initio give notice to the INSURED that they regard this insurance as being of full force and effect except that there shall be excluded from the indemnity provided hereunder any claim which has arisen or which may arise out of any CIRCUMSTANCE which ought to have been disclosed to INSURERS in the written proposal or which arises out of materially inaccurate or misleading information given to INSURERS. CONIND

9 4.8 Data Protection Act 1998 It is understood by the INSURED that any information provided to INSURERS regarding the INSURED will be processed by INSURERS in compliance with the provisions of the Data Protection Act 1998 for the purpose of providing insurance and handling claims, if any, which may necessitate providing such information to third parties. 4.9 Cancellation This insurance may be cancelled at any time by or on behalf of INSURERS by 60 days notice given in writing to the INSURED at the INSURED s last known address or registered office (if a company) and the premium shall be adjusted on a pro rata basis Combined claims Where the same original cause gives rise to an entitlement on the part of the INSURED to indemnity under insuring clause 1.1 and any extension(s) under this insurance, the maximum amount payable by INSURERS under insuring clause 1.1 and such extension(s) shall not exceed the INDEMNITY LIMIT. CONIND

10 EXCLUSIONS This insurance shall not indemnify the INSURED in respect of any liability for, or directly or indirectly arising out of, or in any way involving: 5.1 EXCESS The EXCESS. DEFENCE COSTS referred to in insuring clause 1.2 shall not be the subject of any EXCESS. 5.2 Liability involving Transport or Property owned by the INSURED The ownership, possession or use by or on behalf of the INSURED of any aircraft, watercraft, hovercraft, motor vehicle or trailer or any buildings, structures, premises or land or that part of any building leased, occupied or rented by the INSURED or any property of the INSURED. 5.3 Liability arising out of Employment Any injury, disease, illness (including mental stress) or death of any employee under a contract of service with the INSURED or any claim arising out of any dispute between the INSURED and any present or former employee or any person who has been offered employment with the INSURED. 5.4 Supply of Goods The manufacture, construction, alteration, repair, servicing or treating of any goods or products sold, distributed or supplied including the sale and/or supply of hardware and/or software by the INSURED unless such claim arises directly out of negligent advice, design or specification by the INSURED in the course of the BUSINESS. 5.5 Fraud, Dishonesty or Criminal Act Any act, error or omission of any partner or director of the INSURED which is dishonest, fraudulent, criminal or malicious, or any claim where any person has committed a dishonest, fraudulent, criminal or malicious act after discovery by the INSURED of reasonable cause for suspicion that such act has been committed. Further, no indemnity will be provided to any person committing or condoning such dishonest, fraudulent, criminal or malicious act or omission and any monies which but for such fraudulent, criminal or malicious act or omission would be due from the INSURED to the person committing such act, or any monies held by the INSURED and belonging to such person, shall be deducted from any amount payable under this insurance. However, this exclusion shall not apply in respect of any civil claim arising out of any breach of any United Kingdom statutory regulation relating to building or construction works, subject to the act, error or omission not being deliberate on the part of the INSURED. 5.6 Controlling Interest Any claim made against the INSURED by either: any entity in which the INSURED exercises a controlling interest, or any entity exercising a controlling interest over the INSURED by virtue of having a financial or executive interest in the operation of the INSURED unless such claim is made against the INSURED for an indemnity or contribution in respect of a claim made by an independent party against the said entities detailed in or and arises out of the exercise and conduct of the BUSINESS. 5.7 Contractual Liability Any performance warranties, penalty clauses, guarantees or liquidated damages unless the INSURED s liability would have existed in the absence of such warranties penalties or guarantees Any collateral warranty where the INSURED provides any express guarantee (including fitness for purpose), agrees to any express penalty or liquidated damages, or agrees to provide any party with a greater or longer lasting benefit than that given to the original party, provided that this exclusion shall not apply where the liability of the INSURED would have existed in the absence of any of the above or where INSURERS have expressly approved the relevant terms of the particular contract. CONIND

11 5.8 Nuclear Risks Any of the following: ionizing radiations or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel the radioactive, toxic, explosive or other hazardous properties of any explosive nuclear assembly or nuclear component thereof. 5.9 War and Terrorism Any of the following: war, invasion, acts of foreign enemies, hostilities (whether war be declared or not), civil war, rebellion, revolution, insurrection, riot, civil commotion usurped power confiscation or nationalisation or requisition or destruction or damage or loss of property by or under the order of any government or public or local authority any act or acts of terrorism, force or violence for political, religious or other ends directed towards the overthrowing or influencing of the government, or for the purpose of putting the public in fear, by any person or persons acting alone or together or on behalf of or in connection with any organisation any action taken in controlling, preventing, suppressing or in any way relating to and/or and/or above. The burden of proving that a claim does not fall within this exclusion shall be upon the INSURED Area of Activities Any work or activities undertaken by the INSURED outside the GEOGRAPHICAL LIMITS Jurisdiction Any claim brought (or the enforcement of any judgement or award entered against the INSURED) in the courts of the United States of America and/or Canada or their Dominions or Protectorates Fines, Penalties, Punitive, Multiple or Exemplary Damages Fines, penalties, punitive, multiple or exemplary damages, other than in respect of defamation, libel or slander where such have been identified separately within any judgement or award Loss of DOCUMENTS - Magnetic or Electrical Media The physical loss of or damage to DOCUMENTS which are stored on magnetic or electrical media unless such DOCUMENTS are duplicated on magnetic or electrical media with the intention that in the event of loss or damage the duplicate can be used as the basis for restoring the DOCUMENTS to their original status POLLUTION POLLUTION unless it was caused by a negligent act, negligent error or negligent omission by the INSURED and/or by others acting on behalf of the INSURED, provided that such POLLUTION was not caused by an intentional act of the INSURED. In respect of any claim arising from POLLUTION the INDEMNITY LIMIT shall be amended to each and every claim and in the aggregate and not as shown in the SCHEDULE. Furthermore, for the purposes of this clause only, DEFENCE COSTS shall not be paid in addition to but shall be included within the INDEMNITY LIMIT and shall be subject to the EXCESS shown in the SCHEDULE and not as stated in exclusion Directors and Officers Liability Any claim arising from being a director, officer or trustee of the INSURED (as opposed to those duties and functions carried out in furtherance of the BUSINESS) or from the acceptance of any directorship or trusteeship in any other company not forming part of the INSURED Other Insurance Any claim where the INSURED is entitled to indemnity under any other insurance(s) except in respect of any amount for which the INSURED would otherwise be entitled to indemnity under this insurance beyond the amount for which the INSURED is entitled to indemnity under such other insurance Previous Claims and Circumstances Any claim or circumstance that may give rise to a claim which has been notified and accepted by insurers in respect of any other insurance attaching prior to the inception of this insurance or as CONIND

12 disclosed as a material fact to INSURERS which formed the basis of this insurance or any claim or circumstance that may give rise to a claim of which the INSURED was or should have been aware prior to the inception of this insurance Trading Losses Any trading losses or trading liabilities incurred by any business managed or carried on by the INSURED including loss of any client account or business Failure to Arrange Insurance Any consequential loss arising from the failure of the INSURED to arrange and/or maintain insurance Asbestos Any claim involving asbestos. CONIND

13 DEFINITIONS AND INTERPRETATIONS Headings and notes are for information purposes only and are not to be construed as part of this insurance. Various words and phrases are used in this insurance and wherever they appear, whether they are used in the plural or singular form, they are deemed to have the meaning set out below: 6.1 INSURED Shall mean: the PRACTICE The present and future partners and present and future directors of the PRACTICE Former partners and former directors of the PRACTICE in respect of claims made during the POLICY PERIOD but arising out of the exercise and conduct of the BUSINESS during the period whilst they were receiving salary or financial benefit from the PRACTICE The estate, heirs and executors of those parties mentioned in PRACTICE Shall mean the professional practices(s) whether corporate, sole trader or partnership named as the INSURED in the SCHEDULE including any predecessors in business. This also includes any practice(s) or business(es) for which the INSURED is legally liable in consequence of the acquisition of such practice(s) or business(es) prior to inception of this insurance provided INSURERS have been notified in writing of the existence of such other practice(s) or business(es) and INSURERS have agreed to insure such entities. 6.3 BUSINESS Shall mean advice given and service(s) performed by or on behalf of the INSURED as detailed in the SCHEDULE. Where the INSURED is liable for a sub-consultant the definition of BUSINESS is extended to include any professional activities of the sub-consultant for which the INSURED is liable. In addition, the definition of BUSINESS is extended to include personal appointments of any person except the acceptance of any directorship or trusteeship in any other company falling within the definition of the INSURED provided the fees, if any, for such activities are credited to the PRACTICE and such activities are related directly or indirectly to the activities listed in the SCHEDULE and the individual is qualified or experienced to carry out such work. 6.4 INSURERS Shall mean the insurance companies or Lloyd s syndicates subscribing to this insurance. 6.5 SCHEDULE Shall mean the document entitled SCHEDULE that relates to this insurance. 6.6 INDEMNITY LIMIT Shall mean the sum shown in the SCHEDULE which is available to indemnify the INSURED in respect of each claim provided always that where more than one claim arises from the same original cause all such claims shall be deemed to be one claim and only one INDEMNITY LIMIT shall be payable in respect of the aggregate of all such claims. 6.7 POLICY PERIOD Shall mean the period shown in the SCHEDULE plus any extensions to the period which may be granted by INSURERS. 6.8 DEFENCE COSTS Shall mean all costs and expenses incurred in the investigation, defence or settlement of any claim or CIRCUMSTANCE notified under the terms of this insurance and/or the cost of representation at any enquiry or other proceedings which have a direct or indirect relevance to the investigation, defence or settlement of any matter notified under the terms of this insurance. 6.9 CIRCUMSTANCE Shall mean information or facts or matters of which the INSURED is aware which is likely to give rise to a claim against the INSURED which the INSURED could become legally liable to pay and which arises out of the exercise and conduct of the BUSINESS. CONIND

14 6.10 DOCUMENTS Shall mean project models or displays, deeds, wills, agreements, maps, plans, records, photographs or negatives, written or printed books, letters, certificates or written or printed documents of any nature whatsoever and shall include computer software and systems records (electronic data shall be deemed to be physical property for the purposes of this insurance). This definition excludes bearer bonds, coupons, bank or currency notes and other negotiable paper EXCESS Shall mean the sum shown in the SCHEDULE unless otherwise stated in this insurance and shall be the first amount of each claim which is payable by the INSURED. Where, however, more than one claim is made during the POLICY PERIOD which arises from the same original cause then only a single EXCESS shall apply in respect of such claims LETTER OF CLAIM Shall mean the Letter of Claim as detailed in any applicable Pre-Action Protocol CO-OPERATE Shall mean that the INSURED assists INSURERS and their duly appointed representatives to put forward the best possible defence of a claim within the time constraints available shall have adequate internal systems in place, which will allow ready access to material information shall at all times and at its own cost give to INSURERS or their duly appointed representatives all such information, assistance, signed statements or depositions as may properly be required to facilitate compliance with all applicable Civil Procedure Rules, Practice Directions and Pre- Action Protocols and recoveries shall pay the EXCESS on demand of INSURERS or their duly appointed representatives to comply with any settlement agreed by INSURERS GEOGRAPHICAL LIMITS Shall mean anywhere in the world excluding the United States of America and/or Canada or their Dominions or Protectorates or as varied in the SCHEDULE POLLUTION Shall mean any one or a combination of a release, emission, discharge, dispersal, disposal, escape of any substances, which are capable of causing HARM to any person or any living organism, into or onto any water, land or air HARM Shall mean any harm to the health of any living organism or interference with ecological systems of which they form part and, in the case of a person, shall include offence caused to any of their senses. CONIND

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